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I’m receiving workers compensation weekly payments. Can I also receive maternity leave?

I’m receiving workers compensation weekly payments. Can I also receive maternity leave?

Published on September 10, 2020 by Aleisha NairAleisha Nair

Weekly payments are paid when an injured worker is unfit to perform their pre-injury or other suitable employment as a result of the injury they have suffered.

So what happens to your weekly payments when you are unable to work because of your injury, but also because you are pregnant or have recently had a child that requires care?

Parental leave (incorporating maternity leave, paternity and partner leave, and adoption leave) is an allowance or benefit provided to employees who have worked for their employers for a specific amount of time.

The workers compensation legislation specifically deals with weekly payments and annual leave, long service leave, holiday leave and sick leave, however is silent on whether an injured worker can receive parental leave payments while also receiving weekly payments.

This matter was dealt with by the Workers Compensation Commission in Miller v New South Wales Police Service (No.2) [2007] NSW WCCPD 216, and confirmed in Kirkbide v The State of New South Wales (Ambulance Service) [2019] NSWWCC 236.

These decisions specifically dealt with maternity leave payments and in summary, those decisions concluded:

  1. The legislation is silent on whether an injury worker can receive weekly benefits and also maternity leave payments.
  2. Maternity leave payments are not a ‘dual benefit’ under the Act, and have no relationship or association with the receipt of weekly compensation payments due to incapacity for work.
  3. Maternity leave payments are not categorised earnings, and do not satisfy the insurer’s obligation to pay workers compensation entitlements.
  4. Leave taken as a result of pregnancy does not affect an injured worker’s entitlement to compensation.

The Workers Compensation Commission has confirmed that injured workers can receive maternity leave payments (or similar parental leave payments) while receiving weekly compensation payments.

If you are unsure of your entitlement to weekly payments and other leave entitlements, it is critical that you seek expert legal advice to make sure you are receiving your full workers compensation entitlements.

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